The 2025 legislative session is a 60-day session. It begins January 21 and ends on March 22, 2025. On October 23, Bernalillo County District Attorney Sam Bregman flanked by representatives of the Albuquerque Police Department (APD) and the Bernalillo County Sheriff’s Office (BCSO), called upon the New Mexico Legislature to make major changes to what he referred to as an “outdated and weak” Children’s Code.
Bregman said it’s time to make changes to the “Delinquency Act” of the Children’s Code. The last time state lawmakers reworked New Mexico’s juvenile justice laws was back in 1993, over 30 years ago. Some of his proposals have previously been presented to lawmakers.
Bregman said this:
“Juvenile crime is currently at unacceptable levels in Bernalillo County, specifically juveniles committing violent crimes with guns. It is, without a doubt, the one thing that keeps me up at night. … It’s not working, the children’s code is not working, our children’s criminal justice system is not working.”
This blog article is an in depth analysis of the proposed changes to the Children’s Code. The ultimate question that must be addressed is what is in the best interest of the child and keeping a family together versus punishment, incarceration and making sure justice is served.
PROPOSED CHANGES
Under the existing Children’s Code, a “Serious Youthful Offender” is a child 15 to 18 years of age who is charged with and indicted or bound over for trial for first degree murder. A child upon conviction can be sentenced as an adult for the crime. There are no other crimes other than first degree murder that a “Serious Youthful Offender” can be charged with. Bregman said this:
“Currently, the only crime that you can charge as an adult is first degree murder. … We want to expand that to include second-degree murder, voluntary manslaughter, rape, shooting at or from a motor vehicle causing great bodily harm or death.”
Under the existing children’ s code a “Youthful Offender” is defined as a delinquent child subject to adult or juvenile sanctions who is 14 to 18 years of age at the time of the offense and who is adjudicated as committing at least one of a number of listed serious felonies such as second degree murder, kidnapping, robbery, aggravated battery (with a weapon), criminal sexual penetration (rape), aggravated burglary, aggravated arson, shooting at a dwelling or occupied building or shooting at or from a motor vehicle. (See full definition below under heading topic CATEGORIES OF CHILD OFFENDERS AND CRIMES listing all specific crimes).
The proposed changes to the Children’s Code District Attorney Sam Bregman lists that are the most important to him are:
1.Expanding the definition of “Serious Youthful Offender” to include second degree murder, voluntary manslaughter, criminal sexual penetration (rape), armed robbery with the use of a firearm, shooting at or from a motor vehicle causing great bodily harm or death, and shooting at dwelling or occupied building causing great bodily harm or death.
2. Extending the age of possible imprisonment for “Youthful Offenders” from 21 to 25 years old. As the law is currently written, once a juvenile offender turns 21, in most cases, the criminal justice system automatically loses jurisdiction. Extending jurisdiction to age 25 would provide more time to get youthful offenders to get the treatment and supervision they need, while also monitoring the progress they are making.
3. Making it a felony for unlawful possession of a firearm for people under 19 to have any guns, including rifles, and not just handguns. Right now, it is illegal for anyone under the age of 19 to be in possession of a handgun. However, it is not illegal for anyone under the age of 19 to possess an assault rifle. The law would be updating language from “handgun” to “firearm,” which will include assault rifles. Bregman is also proposing to increase the penalty for this crime from a misdemeanor to a fourth-degree felony.
4. Moving a person to an adult facility once they reach the age of 18. Bregman believes that when a juvenile convicted of a violent crime turns 18, they should go to an adult facility because he does not want an 18-year-old in custody with a 13-year-old.
5. Remove the use of the “Risk Assessment Tool” to determine if a child is to be detained and allow prosecutors to file charges without having to first consult the juvenile probation office. Bregman said detention risk assessments also often stand in the way of holding young people who have been arrested, adding the assessments fail to give judges enough discretion and law enforcement officers enough credit as people with firsthand knowledge of a crime. Bregman said this: “I say that if a police officer determines that that person needs to be arrested at the time, they need to be booked into the [detention center], and within 24 hours or so, a judge needs to hear and determine whether or not that person should be detained pending adjudication of the charges”.
6. Unsealing juvenile records during certain court hearings proceedings. This would consist of removing the secrecy laws that seal juvenile records from public review for the most serious offenders. This would allow juvenile records to be used during any adult conditions of release or sentencing hearing without having to obtain a court order to unseal the records. Every judge has the right to know and consider if the person in front of them has a violent past when determining conditions of release or sentencing. This change would allow for additional information to be heard and considered and will ultimately promote public safety.
7. Requiring judges to preside over juvenile detention hearings.
8. Grant judge’s discretion on the length of probation or commitment terms based on a juvenile’s history.
Bregman said this of all the proposed changes:
“Changing the way we do business in our children’s criminal justice system is the single number one priority we can do when it comes to crime in our legislature in the upcoming 60-day session.”
WHEN IT BEGAN
It was on June 11, 2024 that Bernalillo County District Attorney Sam Bregman began calling for reform of the state’s Children Code after APD arrested an 11-year-old boy for a series of violent crimes. APD said at the time the child is a member of a gang calling itself “the Kia Boys.” APD said the 11 year old and at least 3 others were caught on camera crashing into a convenience store and hopping over the counter to steal alcohol and cigarettes. Bregman said this:
“The law doesn’t provide any specific consequences for a judge to be able to hand out to an 11-year-old doing the kinds of things they’re doing. … And in fact, the law basically affirmatively says you can’t incarcerate an 11-year-old. … If there are super young like this 11-year-old alleged offender, then we will continue to be in uncharted territory. If they’re older, they’re 15 and over, we know how to handle those cases.
It is a real concern under the children’s code, what we can what we can’t do at the District Attorney’s office, and we’re doing everything possible to focus on the safety of our community, but also the wellbeing of an 11-year-old. … I’m not someone who’s advocating out there throwing the book and throwing the key away on 11-year-olds. But I am saying we have to have some more tools in the toolbox.”
DRAMATIC SPIKE IN CRIMES COMMITTED BY JUVENILES WITH GUNS
Since January 4, 2023, when Bregman was appointed by the Governor to the fill the vacancy caused by then District Attorney Raul Torrez being elected Attorney General, he says his office has received more than 1,400 juvenile cases, including 119 felony gun crimes this year alone. He said there was a 57% increase from 2022 to 2023 in cases “involving kids with guns” according to data provided by the Bernalillo County District Attorney’s Office.
Since January 2023, the District Attorney Office has received 24 murder cases, 42 armed robbery cases, 48 rape cases and 65 drive-by shooting cases all involving juveniles. Bregman said they have received another 374 juvenile cases where a handgun was involved in one way or another. There are upwards of 80,000 juveniles between the ages of 10 and 18 living in Bernalillo County. The 553 felony cases cited make up less than 1% of the population.
Bregman said it’s time to make changes to the “Delinquency Act” of the Children’s Code, as times have changed in the 3 decades since it was last updated. Bregman said teens have been sentenced to decades behind bars for murders after being given lenient penalties for lesser crimes. As an example Bregman said recently one teen was given probation for a hit-and-run crash that killed someone while another teen was given probation after shooting at a county employee. Bregman said this:
“The reality of this case is, if he had better aim, perhaps someone would have been dead. … What we’re trying to do [with the changes in the law] is build in some consequences when a juvenile first gets in the criminal justice system, so they learn something about how you can’t violate certain laws and norms. You can’t continue that behavior.”
Bregman said each case can have ripple effects that devastate families on both sides. He said he hopes the proposed changes to the Children’s Code can stem some of the effect being felt by the community. Bregman said this about juvenile gun violence:
“I understand kids make bad decisions. Every kid makes a bad decision, but when you put a gun in that mix of a bad decision, people die, unfortunately. … each case can have ripple effects that devastate families on both sides. … Those victims of violence committed by juveniles and their families have had their lives destroyed”
`Bregman said he hopes the amendments can teach juveniles a lesson before it’s too late and the intent is not to “lock up juveniles and throw away the key” and he said:
“What we’re trying to do is build in some consequences when a juvenile first gets in the criminal justice system, so they learn something about how you can’t violate certain laws and norms. You can’t continue that behavior.”
Bregman said addressing juvenile crime goes beyond lawmakers addressing the problem and he said this:
“This takes an entire community, including parents and family members, to make a difference in these young people’s lives. We all have to come together as a community and as a state, if you will. … Let’s give them the chance to get on the right path and be productive citizens, because if we don’t give them consequences early on, we end up with juveniles who are sentenced for decades in the corrections department.”
APD AND BCSO LEND SUPPORT
DA Bregman was joined at his press conference by representatives of the Albuquerque Police Department (APD) and the Bernalillo County Sheriff’s Office (BCSO). Representatives from both Departments spoke about the trends they’ve been seeing in the field.
APD said that juvenile crime has increased since the pandemic, especially shootings out of moving cars or at buildings. APD Commander Kyle Hartsock said national data finds it has never been easier for adolescents to get their hands on guns. The DA’s Office added that they’ve also seen an increase in juvenile crimes on social media including teens selling guns online.
APD Commander Hartsock said his department struggles to book juveniles who would have routinely been booked years ago. In part, that’s because the department generally cannot book juveniles unless they are caught with a gun or used one in committing a crime. Hartsock said Bregman’s proposals would help to hold accountable juveniles who engage in common crimes like drive-by shootings and auto thefts. Hartsock said this:
“We hope that the juveniles can get the support they need — a lot are coming from really complex family life situations, it’s not as easy as just arresting your way out of it, necessarily … But at the same time, when they’re getting caught by our officers, they’re really far gone away from that system. We have to be able to take appropriate, quick action on them to keep the juveniles safe and our society safe.”
APD Commander Kyle Hartsock said this:
“It is a statewide problem. Our detectives work with police in Santa Fe, Roswell, Las Cruces, Taos, Ruidoso all the time. And helping solve their crimes or track some of their offenders that are coming through Albuquerque, many of them juveniles. … We have to be able to take appropriate, quick action on them to keep the juveniles safe and our society safe.”
Hartsock said detectives arresting the teens, who often come from “really complex family life situation” hope they get the help they need. Hartsock said this:
“The amount of juveniles … involved in auto thefts has skyrocketed for our department. We’ve caught kids as young as 12 years old, joy-riding in cars, stealing our bait cars, stealing other people’s cars. … It’s not as easy as just arresting your way out of it … but at the same time, when they’re getting caught by our officers, they’re already really far gone [when you] have kids driving down the road in a Kia with a bag of fentanyl on the front passenger seat and their friend in the back seat videoing as they shoot out the window of a house.”
Bernalillo County Sheriff Chief Deputy David Funes said this:
“The perception of their peers right now is that there are no consequences for crimes committed by juveniles in this community.”
JUVENILE JUSTICE ADVOCATES REACT
District Attorney Sam Bregman has faced criticism on some of his proposals in the past from juvenile justice advocates. Some advocates oppose his plan to transfer teenagers who turn 18 inside a juvenile detention facility to an adult jail, arguing that measure would hinder the rehabilitation of those young people, who are developmentally not so different from other teenagers.
Bregman responded to those criticisms, arguing in the eyes of the law, an 18-year-old is still an adult and he said this:
“If you’re 17 years old, a day away from your 18th birthday, and you commit a crime, then what that argument is saying is that they should stay in the juvenile detention center the whole time, pending everything and any sentence. … But if you’re a day older and you’re 18, and you do the exact same crime, an 18-year-old goes away in the adult system. … “I don’t see the difference between a 17-year-old, 364 days old, and an 18-year-old who [commits] the exact same crime.”
Chief Public Defender Ben Baur, with the Law Offices of the Public Defender, said his office agrees that juvenile crime “is a critical issue” and the agency would engage in conversations on the Children’s Code.
However, Bauer said this in a statement:
“But focusing on jailing kids and treating them as adults as a way to solve these issues is misplaced and will actually create more problems for our children and our communities. …
Many of these proposed changes to the Children’s Code represent a significant expansion of treating kids in the same way we treat adults, and would result in the automatic transfer of many juvenile cases into the adult courts, without consideration of the individual circumstances.
Decades of study and science, and our own experience working with children, show the deep flaws in this approach.”
The public defender’s office in the past has disagreed with the change on expanding the definition of “serious youthful offender” so more types of crimes could lead to kids being tried as adults. The Public Defender argues that’s what grand juries and preliminary examination hearings are for.
District Public Defender Dennica Torres put it this way:
“Removing that mechanism and just saying they are accused of first-degree homicide, we’re going to automatically route them to downtown court, adult court is not, they’re taking away protections from them. They have that right to be presented to the grand jury as well.”
Links to relied upon or quoted news sources are here:
https://www.koat.com/article/new-mexico-crime-juvenile-bernalillo-county/61629156
https://www.kob.com/new-mexico/da-sam-bregman-urges-lawmakers-to-reform-juvenile-justice-system/
LEGISLATORS REACT
No state lawmakers were present during Bregman’s October 23 press conference. Notwithstanding, Bregman said he’s heard general interest in his proposals and has sent them to House Speaker Javier Martínez, D-Albuquerque, and to Governor Michelle Lujan Grisham for their review and input.
House Judiciary Chair Christine Chandler, D-Los Alamos, said it was premature to comment on the amendments before discussing the proposals with Bregman. Chandler said this:
“Certainly we know that the Children’s Code needs to be updated and modernized, I think there’s consensus around that point.”
Senate Judiciary Chair Joseph Cervantes, D-Las Cruces, said that at first glance some of the proposals are “worth having full discussions about.” He said several of them may seemingly restrict judges’ discretion in juvenile sentencing, and the public has expressed frustration that it “doesn’t reflect societal values.” Cervantes said this:
“I think we’ll be cautious about that, but I do understand where that sentiment is coming from. … “No doubt about it, [the Children’s Code needs to be updated] … [I’m glad Bregman is willing to] take the bull by the horns. … I think that’s what’s needed right now.”
Speaker of the House Javier Martinez appears to agree it’s time to update the Children’s Code. Speaker Martínez said in a statement an important component of making sure young people thrive is making sure they understand the consequences of crime. Martinez said this:
“I look forward to learning more about these proposals to modernize our Children’s Code and expect we will continue this important conversation in the upcoming session.”
House Minority Leader Rod Montoya, R-Farmington, said in a statement Bregman’s proposals were “critical to preventing young people from pursuing a life of crime and preventing others from becoming victims.”
The links to quoted or relied upon news sources are here:
https://www.kob.com/new-mexico/da-sam-bregman-lays-out-plan-to-curb-juvenile-crime/
CHILDRENS’S COURT EXPLAINED
Children’s Court is established in each of the 13 Judicial Districts in the state with the Children’s code establishing Court’s known as the Children’s Court. The Children’s Court jurisdiction is not exclusive to criminal charges filed against a child. The court has exclusive original jurisdiction of all proceedings under the Children’s Code in which a person is 18 years of age or older and was a child at the time the alleged act in question was committed or is a child alleged to be:
- A delinquent child.
- A child of a family in need of court-ordered services or a child in need of services.
- A neglected child.
- An abused child.
- A child subject to adoption; or
- A child subject to placement for a developmental disability or a mental disorder.
- The court has exclusive original jurisdiction to emancipate a minor.
CHILDREN’S CODE IN A NUTSHELL
State law establishes the purpose of the Children’s Code to be as follows:
- To provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children’s Code and then to preserve the unity of the family whenever possible. A child’s health and safety shall be the paramount concern. Permanent separation of a child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit;
- To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced;
- To provide a continuum of services for children and their families, from prevention to treatment, considering whenever possible prevention, diversion and early intervention, particularly in the schools;
- To provide children with services that are sensitive to their cultural needs;
- To reduce overrepresentation of minority children and families in the juvenile justice, family services and abuse and neglect systems through early intervention, linkages to community support services and the elimination of discrimination;
- To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of a child victim; and
- To provide continuity for children and families appearing before the children’s court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family.”
CATEGORIES OF CHILD OFFENDERS AND CRIMES
The Children’s code defines an “adult” as a person who is 18 years of age or older and defines a “child” as person who is less than 18 years old and the Children’s Code deals exclusively with the prosecution those who are less than 18 years of age. There is a sperate and distinct legal process from what is done for adults under the Children’s Code to charge a child with crimes.
Petitions are filed charging a child as a “Deliquent Offender” and in need of supervision and once adjudicated delinquent by the court, the child is placed on probation with terms and conditions imposed and enforced by probation authorities.
Petitions or complaints are filed charging a child as “Youthful Offender” or “Serious Youthful Offender” and in such cases the child is afforded all the rights of an adult including representation by and attorney, due process of law and a jury trial with rights of an appeal.
In all cases begun pursuant to the provisions of the Children’s Code, when a child is taken into custody, the child must be released to the child’s parent, guardian or custodian and a child subject to the provisions of the Children’s Code is entitled to the same basic rights as an adult. Arrests of a child are also handled differently as is incarceration.
Children charged with a crime are divided into 3 distinct categories under the Children’s Code according to the crimes committed. Those categories are Delinquent Offender, a Youthful Offender and a Serious Youthful offender.
A “Delinquent Offender” is a delinquent child who has committed a delinquent act and who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender.
A “Delinquent Act” is defined as an act committed by a child that would be designated as a crime under the law if committed by an adult, not including the crime of prostitution … and includes the following:
(1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code … :
- driving while under the influence of intoxicating liquor or drugs.
- failure to stop in the event of an accident-causing death, personal injury or damage to property;
- unlawful taking of a vehicle or motor vehicle.
- receiving or transferring of a stolen vehicle or motor vehicle.
- homicide by vehicle.
- injuring or tampering with a vehicle.
- altering or changing of an engine number or other vehicle identification numbers.
- altering or forging of a driver’s license or permit or any making of a fictitious license or permit.
- reckless driving.
- driving with a suspended or revoked license; or
- an offense punishable as a felony;
(2) [B]uying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child’s parent, guardian, custodian or adult spouse. … .
(3) … [T]he illegal use of a glue, aerosol spray product or other chemical substance;
(4) [A] violation of the Controlled Substances Act … .
(5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;
(6) … unauthorized graffiti on personal or real property;
(7) [A] violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act
(8) trafficking cannabis … .
(See 32A-2-3. Definitions, Delinquency Act )
A “Youthful Offender” is defined as a delinquent child subject to adult or juvenile sanctions who is 14 to 18 years of age at the time of the offense and who is adjudicated as committing at least one of the following offenses (statute citations omitted) :
- second degree murder
- assault with intent to commit a violent felony
- kidnapping
- aggravated battery
- aggravated battery against a household member
- aggravated battery upon a peace officer
- shooting at a dwelling or occupied building or shooting at or from a motor vehicle
- dangerous use of explosives
- criminal sexual penetration
- robbery
- aggravated burglary
- aggravated arson
- abuse of a child that results in great bodily harm or death to the child
(Delinquency Act , 32A-2-3 , Definitions with citations,)
A “Serious Youthful Offender” is a child 15 to 18 years of age who is charged with and indicted or bound over for trial for first degree murder. Note that there are no other crimes other than first degree murder and the child is sentenced as an adult for the crime.
(See 32A-2-3. Definitions, Delinquency Act )
THE DELINQUENCY ACT
The Delinquency Act is part of the Children’s Code. A child subject to the provisions of the Delinquency Act is entitled to the same basic legal rights as an adult. According to the Delinquency Act, its purposes are:
- Consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child’s age, education, mental and physical condition, background and all other relevant factors, and to provide a program of supervision, care and rehabilitation, including rehabilitative restitution by the child to the victims of the child’s delinquent act to the extent that the child is reasonably able to do so.
- To provide effective deterrents to acts of juvenile delinquency, including an emphasis on community-based alternatives.
- To strengthen families and to successfully reintegrate children into homes and communities.
- To foster and encourage collaboration between government agencies and communities with regard to juvenile justice policies and procedures.
- To develop juvenile justice policies and procedures that are supported by data;
- To develop objective risk assessment instruments to be used for admission to juvenile detention centers;
- To encourage efficient processing of cases;
- To develop community-based alternatives to detention;
- To eliminate or reduce disparities based upon race or gender;
- To improve conditions of confinement in juvenile detention centers; and
- To achieve reductions in the number of warrants issued, the number of probation violations and the number of youth awaiting placements.
Ultimately, a District Court Judge has the discretion to impose some confinement or juvenile sanctions on a youthful offender, but the court only has jurisdiction over the child until he reaches the age of 18. The children’s court attorney must give notice of intent to invoke and seek an adult sentence. A preliminary hearing by the court or a hearing before a grand jury must be held after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.
The link to review the entire children’s code is here:
COMMENTARY AND ANALYSIS
Simply put, New Mexico’s children are committing more and more violent crimes where guns are involved. The state’s Children Code and our Juvenile Criminal Justice System has not been able to keep up with changing times to deal with what now can only be considered a major crisis. Part of the problem is just how complicated the children’s code really is and its application. The ultimate question that must be addressed is what is in the “best interest of the child” and keeping a family together versus punishment, incarceration and making sure justice is served and the public is protected.
It is very clear that the primary emphasis and purpose of the Children’s Code is not punishment in the form of confinement of child for crimes committed but on rehabilitation, services, counseling and social services. The primary goal of the Children’s Code and the Juvenile Justice System is to keep the family unit intact and what is in the best interest of the child. Such an approach is wise whenever you are dealing with delinquency types of cases and children of tender age. It is teenage juveniles that pose the biggest problem of what approach is in order.
Under the children’s code there is no mandatory sentencing and confinement when delinquency is found and when it does happen it can only be up and until the child reaches 18. However, things do get very complicated when gun violence is involved, protecting the general public from gun violence and when it comes to sentencing a child as an adult when charges are brought against the child as a “youthful offender” or “serious youthful offender.”
All of the major proposals and changes to the Children’s Code as outlined and proposed by District Attorney Sam Bregman are reasonable, should be considered necessary given the violent crimes being committed by juveniles and should be adopted by the legislature. No doubt many will argue that they run afoul of the purpose and intent of the Children’s Code which is to do what is in the best interest of a child.
DA Bregman’s proposals to expand the definition of “serious youthful offender” so more types of crimes could lead to children being tried as adults is reasonable and necessary given the types of violent crime that is being committed. The challenge for the legislature is to decide what types of offenses for which a juvenile over 15 can be charged as an adult. Right now, that can only happen for first-degree murder. What should be included are all violent crimes involving a weapon and should include the crimes of aggravated assault, aggravated battery armed robbery with a firearm, and child abuse resulting in death. The legislature should also fix the law that currently allows a teenager to wield an assault rifle, though handguns are still illegal.
The link to a related blog article is here: